at law and the suit in equity. The discussions and conclusions which it contains are not theoretical; they are everywhere and always based upon an exhaustive examination, analysis, and comparison of the decided cases: and the author has freely drawn upon the judicial decisions of the States, and by this means presents to the reader a body of authority which fully indicates the action of the courts and their theories and modes of interpretation throughout the commonwealths in which the system prevails. Although it cannot be pretended that every case referring to the Civil Action has been cited, in fact, many of them are unworthy of citation, since they are the reflections of crude and incorrect opinions long since rejected, while others are the mere repetitions of points already well settled, yet it is believed that none are omitted which contain the statement of a new and correct principle. The author has endeavored to collect all the leading cases in every State, all those which have been finally accepted as authoritative, and which represent the mature thought and convictions of the judiciary; and in no other work can be found such a mass of judicial opinion gathered from courts of the various States, giving a construction to the statutory provisions which describe the Civil Action, and building up an harmonious and consistent system of procedure upon the reform legislation. While the author has everywhere endeavored to reach the true principles of interpretation, and to extract from the cases a statement of universal doctrines which shall aid in the solution of all future questions, and has not scrupled to express his own views and opinions, such speculations and arguments are always plainly indicated and represented in their real character, so that the reader need never confound them with the results of actual judicial decision, and be thus led to accept as settled law what is only a personal conviction or suggestion of the author. While the work is thus intended to be a practical handbook for the lawyer, as an aid in the every-day duties of his profession, it is hoped that its use may tend to bring the procedures of the different States into closer relations, and may finally produce the perfect identity of method and form which is possible from the legislation itself, and which was, beyond doubt, the design of the several legislatures in adopting the reform. Such an identity is entirely practicable, and the full beneficial results of the change will not be attained until it is reached. In every State there has accumulated a growing amount of judicial interpretation which would be of the greatest assistance to the Bench and Bar of all the other States; and in several of them certain special rules and methods have been wrought out and finally established, which need only to be known in order to be universally followed. Such a reform, founded on the nature of things, and not upon artificial and arbitrary assumptions, never goes backward; and the time will surely come when the system that has already spread so widely will be introduced into every commonwealth, and when the distinction between legal and equitable modes of pursuing remedies will disappear, and finally be forgotten. The central conception of the reformed procedure, and the one from which all the elements of the Civil Action are developed, is the abolition of the distinction between legal and equitable suits, and the substitution of one judicial instrument, by which both legal and equitable remedies may be obtained, either singly or in combination. The full scope and effect of this grand principle are exhaustively discussed in the opening chapter, while the necessary limitations upon its operation which inhere in our judicial institutions are also carefully pointed out. Having thus laid the foundation upon which the whole superstructure rests, the remaining parts of the Civil Action are examined in turn, and the practical rules which control their use are minutely explained in the light of judicial authority. These general features are the parties to the Civil Action, plaintiff and defendant, the presentation of the cause of action by the plaintiff, and of the defence or claim of affirmative relief by the defendant. The two latter divisions include, among other important particulars, the principles of the reformed pleading; the scope and effect of the general denial, with the defences which may be proved under it; the nature and object of specific denials; the answer of new matter, and the defences which must be specially pleaded; and the counterclaim. The discussion of these special topics, being of the greatest practical importance, has been purposely made very full and minute. An attempt has also been made to obtain, in a general and complete form, the true meaning of certain phrases found in all the codes, upon which the interpretation of most important provisions, and the practical rules resulting therefrom, so closely depend. Among the statutory phrases are "the cause of action," "the subject of action," "transaction," "causes of action arising out of the same transaction," and the like. If the author has succeeded in ascertaining the true meaning of these and similar expressions, and the legislative intent in their use, he is confident that he will have rendered a substantial aid to the profession, and even to the courts, in the difficult work of statutory interpretation. The treatise, as a whole, if its purpose has been properly carried out, will be a practical handbook, adapted to the use of the profession in every State and Territory where the reformed procedure prevails. It is also designed as a text-book for students, whether in offices or in law schools; and to that end frequent reference has been made to the common-law and equity systems of procedure, in explanation of their more general doctrines and principles, and in comparing them with those which have been substituted in their place. If its reception by the Bar shall be favorable, the author's original design will be completed by a second, but entirely distinct and independent, volume, which will treat of the remedies and remedial rights that may be obtained and enforced by means of the Civil Action, their nature and classification, and the particular rules and doctrines which regulate the employment of the action in their pursuit. JOHN NORTON POMEROY. ROCHESTER, N.Y., December, 1875. |